Flat owners rights and society maintenance
SANTTHOSH SHETTY
(Querist) 11 May 2016
This query is : Resolved
i am a flat owner in one of redeveloped building located at malad.Post pysical posession of the flat old members extended thier chajja and duck area illegally without any permission from builder or bmc.
1. what are the rights of new flat owners before builder handover to question the illegal extension by OLD MEMBERS as being we are not yet added in their society membership
3. there is huge difference in 1 bhk and 2 bhk flat area, its almost double. can we ask for the fer square feet maintenance of all charges being area difference is huge that too with illegal extensions.
4. can the society committee take decision on the maintenance part as per bye-laws for charging maintenance per square feet basis
pls guide me or give me some contact no of lawyers who can help in solving this issues.
Kishor Mehta
(Expert) 12 May 2016
Sir,
No member can make structural additions and alterations to his flat without the written permission of the [i] Owner/builder/Society; [ii] A written permission of the Municipal corporation is also necessary, else these alterations are illegal and unlawful.
In the case of a redeveloped society building names of new members are to be added after the relevant documents to their respective flats are registered.
Every member has to share the maintenance charges equally, irrespective of the size or area of their flats.
Property Tax levied by the BMC is levied according to the area of the flat.
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 12 May 2016
Dear Kishore
Thanks for your advise. need further deails
As per the developement agreement old society will continue and only building name will be changed. all new flat purchasers admission as members to the society is under process. my question is in the mean time what action new flat owners can take against the old members for the illegal extensions done in the building.
if property tax, stamp duty, registration fees are calculated based on the area and amount of the flat, why not all the maintenance charges can not be on the basis of per sqr ft basis.
can society charge if majority of the members agree for the same by passing the resolution in the meeting
pls suggest
Kishor Mehta
(Expert) 12 May 2016
Sir,
You may send written complaints to the society authorities as also to the Building & Factory dept. of Municipal corporation about the illegal extensions done by the old members.
The maintenance charges have to be shared equally by all members, irrespective of the size or area of their respective flats, and that is as per the Bye-Laws of CHS. This can not be altered by majority members voting against it.
You may pass a resolution making change, about share of maintenance charges, in the Bye-Laws of CHS in AGM or SGM and send the resolution to the Dy.Registrar for his sanction, he may or may not sanction the changes. There is a Court Judgment against it.
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 30 May 2016
Thanks for sharing valuable inputs. Further to the the above matter
1) What is the possibilities for asking for penal actions from society registrar for the members who has constructed illegal extension?. we are being afraid of if the complaint to local municipal authority's, they may demolish which will further impact on the structure of the building and may cause for more leakages.
2) how can the new flat purchaser can question the irregularities done by the committee member of society while doing the redevelopment in terms of additional areas been given to committee members free of cost other than mentioned in their development agreement and not for all old members.
3). as per section 56M of MCS act second property owner can not become member in management committee and can not hold any position in society committee. This section was amended in last year. however 2nd property owner became secretary for the doing redevelopment agreement in 2011 and got favours from builder while doing redevelopment. how this can be questioned or can be given complaint to registrar by new flat purchaser who's society membership is still not completed?.
4). can the new flat owner take action with registrar post completion of adding new flat purchaser to society membership?.
5) can the new flat owner ask the registrar to expel the member who has done all the irregularities and become secretary by violating the MCS act?
6). does the new flat owner has the right to question the society function irregularities of redevelopment period?
pls guide in the above matter to the best possible way to benefit of all as few of the old members are against the mutual discussion and to come up with desired solution which will benefit both the side.
Kishor Mehta
(Expert) 30 May 2016
Sir,
1) The Registrar has no authority to penalize a member for illegal extension, only the Municipal corporation has the right and power.
2) The New member can not challenge any decision of the previous committee.
3) An associate member has a right to become a member of the Managing Committee of a society, if he has been legally accepted as an associate member.
4) A person, after being enrolled as a member of the society, can demand explanation from the managing committee for the acts of omissions and commissions post his admission.
5) The member can draw the attention of the Dy. Registrar for the acts of omissions and commissions of the person, the matter of expulsion is strictly for the Dy. Registrar to decide.
6) No, he does not have such right. However the previous members can do so.
Please understand that to cast aspersions is very easy, it is important to submit valid tangible proof for any and all complaints.
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 30 May 2016
thanks once again
pls clarify point no 3 where this rule was earlier there or not. for my knowledge same is been amended recently last year and earlier no associate member can not become a committee member.
Kishor Mehta
(Expert) 30 May 2016
Sir,
In the previous as well as the latest Model Bye-Laws of CHS 2014 an associate member has been allowed rights as under:
"It is mandatory for the Managing Committee to include the name of the "Associate Member" in the share certificate and mention the word "Associate Member".
The Associate Member can vote, contest elections and attend the AGM/SPGM with prior consent of the First Registered Member in writing. This pleasure is valid till his Associate membership is continued and it is invalided if the First Registered Member decides to withdraw or cancel the Associate membership."
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 30 May 2016
thanks again
need reconfirmation as this was not there prior to 2014.
associate member can not hold any position in society management. pls check the below link and point no 14.in our case same was happened during 2010-11 year.
https://mysocietyclub.com/blog/impact-on-changed-election-rules-for-housing-societies-across-maharashtra/
Kishor Mehta
(Expert) 01 June 2016
Sir,
The citation from the Govt. of Maharashtra circular of 2011 will amply satisfy your query. This relates to a person whose name is included in the registered document & share certificate of the flat.
"GOVERNMENT OF MAHARASHTRA
No. SAGRUYO-2011/PRA.KRA. 360/14-SA, Co operation, Marketing and Textile Department, Date 15th October, 2011
• [1] Even though there is not mentioned the name as a owner in the purchase deed, the Associate Membership can get by paying only admission fee and with the consent of the original member.
In the absence of original member and with his consent associate member can attend the annual general body meeting, the associate member can take part in the election as a voter/ candidate. In case the associate member gets elected as a committee member, he becomes office bearer also.
[2] A person, who became an Associate member by paying only admission fee, shall not get any rights in voting or election behalf the original member."
Presently the person as at no [2] above has the rights of the person as at [1] above.
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 08 June 2016
thank you very much for the valuable input
SANTTHOSH SHETTY
(Querist) 13 June 2016
in continuation to the above matter need answers for the below mentioned questions
1. as per the development agreement, builder is agreed to pay Rs.20K per flat as new flat purchase fees to society. being redeveloped building committee members are saying these money along with other bank account balance money will be distributed among old members. is this the right process? if not kindly suggest the right process. how this 20K per flat will be used by society.these are the money paid by builder on behalf of new flat purchasers.
2. under which law common area encroachment in floor by members for fixing shoe racks or any other things is prohibited. under MCS act or BMC rule. pls clarify.
Kishor Mehta
(Expert) 13 June 2016
Sir,
1. The new flat purchaser, in the redeveloped building, has neither any say or authority to ask the accounts of the managing committee of the old structure, on the distribution of the monies received by them from the developer. He gets the right and authority to demand accounts only after his name is registered in the list of members.
2. The Model Bye-Laws of CHS in Maharashtra cites as under:
"MODEL BYE – LAWS OF COOPERATIVE HOUSING
SOCIETY AS PER 97TH CONSTITUTIONAL AMENDMENT and MAHARASHTRA CO-OP. SOCIETIES (AMENDMENT) ORDINANCE 2013
170. The society shall not let out or give on leave and license basis or permit any subletting, giving on leave and license basis any open space available under the Staircases, Terraces, Open ground, Lawns, Club house, Common Hall etc. or to any person whether the member of the society or not, for any purpose whatsoever.
(a) All open /common spaces meant for use of all members e.g, staircase, steps, landing areas, parking areas, lift, corridor, and such other spaces, cannot be occupied by any member for his own use. The use of such areas shall be restricted to the cause for which these are meant. Any member found to be violating the above condition by encroachment shall have to vacate the encroachment and further he/she shall pay an amount equal to five times the monthly maintenance charges per month for the period for which he/she has encroached such spaces and further members must not carry out any constructions, structural changes over and above the sanctioned plan without prior permission of the society and concerned municipal authorities. Any member violating the above directives shall pay an amount equal to five times the monthly maintenance charges, per month with retrospective effect for the period for which such violation is existed.”
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 14 June 2016
thanks a ton . this is indeed very much useful to us to curb the selfish behaviors of people including committee members who says we follow legal strictly but does encroachment including structural changes in building.
once again many thanks.
SANTTHOSH SHETTY
(Querist) 20 June 2016
continued
we the new flat purchasers are trying and working hard to get the society handed over by builder and they can add us as members of the society. but old members are delaying the things as giving reasons that balance sheet is not ready audit reports 2013 not ready, new process has been introduced by Registrar etc.
under such circumstance can we ask them to add us as members of the society by keeping pending of their balance sheet and audit issues. kindly suggest
Under which rule same is possible and we can ask the builder to do the needful to get the society handedover with our new flat purchasers membership.
Kishor Mehta
(Expert) 20 June 2016
Sir,
The process of electing/forming a new managing committee, and inclusion of new members, can start only after the occupation/completion certificate, for the redeveloped building, has been issued by the MCGM.
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 20 June 2016
Occupation Certificate/ completion certificate is already been issued and its almost 2 years now. we the new flat purchasers took the initiative when the builder stopped paying the monthly outgoings like watchman salary, sweeper salary etc.
kindly suggest.
Kishor Mehta
(Expert) 20 June 2016
Sir,
You have to form a new society, using the previous name or a new name, and follow the procedure of election as per the CHS rules.
You have to demand a conveyance deed, from the builder, for the plot of land. It is mandatory for the builder to transfer the plot of land to the society within four months of the issue of occupation certificate by the MCGM.
Good Luck,
Kishor Mehta
SANTTHOSH SHETTY
(Querist) 20 June 2016
Being redeveloped building,conveyance also already executed in favour of Old society. we new members alsodecided to have the sameoldname of the society. but the we the new flat purchasers are trying and working hard to get the society handed over by builder and they can add us as members of the society. but old members are delaying the things as giving reasons that balance sheet is not ready audit reports 2013 not ready, new process has been introduced by Registrar etc.
under such circumstance can we ask them to add us as members of the society by keeping pending of their balance sheet and audit issues. kindly suggest
Under which rule same is possible and we can ask the builder to do the needful to get the society handedover with our new flat purchasers membership.
kindly suggest
Kishor Mehta
(Expert) 21 June 2016
Sir,
Once the occupation certificate is issued the builder has no jurisdiction in the matters of a CHS. Entire power rests with the society.
It will be advisable to make a complaint to the Dy. Registrar of CHS and place the entire matter before him.
If you have the flat agreement document executed and registered, then the managing committee of the society has to include your name in the register of members. No excuses are valid.
Good Luck,
Kishor Mewhts
SANTTHOSH SHETTY
(Querist) 26 June 2016
Continued......
We bought flat in Redeveloped building and old society will continue. but society was not confirming party in our purchase agreement,agreement is only b/w builder and new flat purchasers only.
1. What is the procedure to add new flat purchasers to existing society of redeveloped building? No new society will be formed here.
2. Since old members current year AGM is pending,In same agm can be done if new committee to be formed and old commitee to be resigned on same agm?
3. Can society call for special general body meeting if agm done by old members to pass the minutes and financial for current year without including the new flat purchasers as members?
4. if new committee to be formed being new flat purchasers also wants to be part of committee, what is the procedure particularly to resignation of old committee and forming of new committee considering the above scenario?
5. Which stage old committee to resign? post which Who has the authority to call for Special General Body Meeting?
6. Can new committee be formed in special general body meeting?
7. Or post resignation of old committee with both members understanding appoint president to process for the new committee and special general body meeting
8. As we are the new flat purchasers whom should we approach for adding society membership being we paid money to builders for society formation charges and we have oc and conveyance in the name of society?
Kindly suggest
Kishor Mehta
(Expert) 26 June 2016
Sir,
You will get reply to your queries from the terms & conditions of the registered redevelopment agreement (with the builder and the old society) & the terms & conditions of your registered agreement with the builder.
Good Luck,
Kishor Mehta
